Tag: responsibility to protect

The Responsibility to Protect & Fear of Foreign Policy Failure

Last week I had the opportunity to partake in a workshop on the Responsibility to Protect (R2P) at The Hague Institute of Global Justice (the Institute). The Institute is preparing to launch a project on R2P, seeking to bring academics, civil society and government/policy makers together to formulate insightful and policy relevant findings on R2P.   As the workshop was governed by Chatham House rules, I will only here note a few of my insights from the workshop, primarily insights about the connections between political will to uphold R2P and the theoretical and practical realities of foreign policy.

R2P is a very broad agenda with multiple loci of responsibility. The first covers the responsibilities of states to protect their own populations against war crimes, crimes against humanity, genocide and ethnic cleansing. A second locus of responsibility is the “international community,” for when states cannot protect their peoples or prevent these crimes, then, it also has an obligation to aid states, through various capacity building and preventive mechanisms. Third and finally, the United Nations Security Council possesses a particular responsibility. When preventive measures fail (or are not forthcoming), then the international community as represented through the United Nations Security Council has the responsibility to use all peaceful means to protect people from the four R2P crimes. If or when those peaceful means fail, then the Security Council has the responsibility to take “timely and decisive” measures, in accordance with Chapter VII of the UN Charter, to protect populations. Such measures include military options, taken with or without the consent of a target state.

These three loci of responsibility track the three Pillars of the doctrine. Pillar One refers to the domestic state’s responsibility as outlined above. Pillar Two addresses the international community’s obligation and commitment to encourage and assist states (through capacity building) to uphold their Pillar One responsibilities. Pillar Three highlights the range of tools, from peaceful to non-peaceful and less coercive to more coercive, available to the Security Council and regional organizations. The pillars, it is thought, are not sequential, and some cases may only invoke or require Pillars One or Two. Regrettably, much of the debate concerning R2P tends to distill to questions about forcible intervention under Pillar Three.

This brings us to last week’s workshop. The brute fact of the matter is that R2P is a state doctrine, and much of the reality in international affairs is that states will only voluntarily undertake actions. In R2P parlance, this means that there is an ongoing question about the “political will” to uphold R2P. The discussion about political will, however, becomes blurred due to several related aspects. First and more generally, when any discussion of political will raises its head, it seems that almost everyone is working from the assumption of the political will to intervene militarily (the Pillar Three responsibility). Yet R2P proponents are quick to point out that R2P is more than this, as it includes early warning and capacity building.

This leads to a second point. States seem quick to lend rhetorical support for early warning and capacity building, but the discussion ends there. It seems, at least to me, that we ought to press them then to make more explicit commitments on these fronts. Development is linked to prevention, and perhaps we ought to change the background assumptions about political will from intervention to state building.

If this is too strong, as many states are unwilling to engage in prolonged state building enterprises, then there ought to be an open and pressing discussion about peacekeeping. If states are unwilling or unable to open their wallets, then perhaps they would be willing to provide troops. For example, as Perry and Smith note, North America and Europe have the lowest levels of troop contributions compared to Asia and Africa. A keen example is the United Kingdom, which consistently contributes around .5% of peacekeepers worldwide. Some might think that these countries are already fulfilling their obligations through foreign aid, so they are under no other or further obligations to supply peacekeepers, but this logic is unsound for a variety of reasons. Least amongst them, it overlooks the sad fact that we have no way under the current R2P doctrine to say who and who has not fulfilled their obligations or even how those obligations could be fulfilled. (See here, here and here for some discussions about this issue.)

Moreover, the gendered division of peacekeepers is also noteworthy and ought to be pressed upon from an R2P perspective. If one is looking for a way to not only keep the peace, but also to build capacity, then it would seem that including more female peacekeepers could kill two birds with one stone.   The level of gender equality is seen as a factor in conflict emergence, and if one could mitigate at least small levels of gender inequality while simultaneously saving lives, then this seems like an obvious win. However, looking at the data for female troop contributions, Crawford, Lebovic and Macdonald find that between 2009-2011 “86 percent of countries contributed no female personnel to an average mission in all three years, and 99 percent of countries contributed no female personnel to an average mission in at least one of the three years, under consideration.” Capacity building and timely response seem inherently linked on this issue.

Though what is apparent from the discussions last week and the reality of R2P is that states are unwilling to commit themselves or their peoples to anything that may end up looking like foreign policy failure. Even if we can divide R2P along the three pillars, states implicitly understand that if they sign on to more than their own responsibility for R2P crimes, this may end up committing them to foreign policy agendas that they deem too risky or too costly.   As Feaver and Gelpi argue in their work, states are willing to take on costs, particularly costs in lives, if they are seen to be “winning.” Casualty aversion only becomes a key concern for states when they are losing their foreign policy battles. While the cases are different, Feaver and Gelpi’s findings are illustrative here. Whatever foreign policy goals states set for themselves, they must be able to formulate them in such a way that they can ultimately “win.” Given that R2P is so wide ranging, covering everything from developing constitutions, building infrastructure, advocating for open democracy, calling for inclusive education of citizens, as well as (non)coercive measures to force states to abide by their obligations, it is, in a sense, a foreign policy nightmare. No statesperson could adequately formulate a policy framework that could be operationalized in a way where states could show that they upheld their responsibilities, did what they could, as well as succeeded in their efforts, and were not also on the hook for more.

Some might object and say that there are R2P successes. To be sure, there are, but there are also so many “failures” that the variation in foreign policy responses as well as the success rate tell us very little about the conditions for states to act, let alone act and succeed. While states are willing to note that they and the international community have a responsibility to protect, they are unwilling to talk about the finer details, and it is my worry that this is because of the vast expanse of the doctrine itself. If states cannot be seen to win and succeed, then they will either refrain from embarking on an R2P activity, or they will choose to do so from the shadows. Risk of foreign policy failure is, then, inherently linked to the discussion of political will, and it is high time we see that the doctrine itself is breeding its own limitations.

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ISIS, Syria, the Rebels and the US-Led Coalition: What Governs Who?

In a phone call today with a friend working on issues pertaining to the Responsibility to Protect (R2P), an interesting question arose. In particular, what types of conflict are going on with the fight against ISIS? My friend wanted to draw attention to the R2P aspects of the crisis, and whether the “intervention” on the side of the US was just according to these standards. While this is certainly an interesting question, I think it points us in the direction of a larger set of questions regarding the nature of the conflict itself. That is, what are the existing laws with which we ought to view the unfolding situation inside Syria? The complexity of the situation, while definitely a headache for strategists and politicians, is going to become equally difficult for international lawyers too. In particular the case has at least two different bodies of law at work, as well as laws pertaining to R2P crimes. Thus any action within Syria against ISIS, or Al-Qaeda, or Assad, or the rebels will have to be dealt with relationally.

Let us look to the case. Syria has been experiencing civil war for three years. Assad’s violations the rights of his people mean that he has manifestly failed to uphold the Responsibility to Protect Doctrine. R2P requires that states hold the primary responsibility to protect their peoples from genocide, ethnic cleansing, war crimes and crimes against humanity. Given Assad’s use of chemical weapons and cluster munitions, as well as targeting civilian populations, he has clearly committed war crimes and crimes against humanity. That Assad has employed the Shabiha, a private paramilitary force, to engage in killing means that he has also more than likely engaged in ethnic cleansing as well. In a perfect world, the Security Council would have acted in a “timely and decisive manner” to stop such abuses, and would have referred the case to the International Criminal Court (ICC) for prosecution. Of course, in May of this year, 53 countries urged the Security Council to refer the situation to the ICC. A mere two days later, Russia and China blocked the referral to the ICC by utilizing their permanent veto powers.   Three years of bloodshed, civil breakdown, hundreds of thousands dead, and three million of refugees, it is too clear that there was no desire to intervene in the crisis.   Thus we can say that there is an ongoing R2P crisis, and that Assad—as leader of the government of Syria—ought to be held to account for these acts. Moreover, there is a failure of the international community to live up to its obligations (as it voluntarily incurred under the 2005 World Summit Outcome Document).

The sheer destruction and violence inside Syria is what permitted the rise of ISIS. This seems an indisputable fact.   The group capitalized on the civil war and breakdown, the tensions between and factionalization of the Syrian rebel groups, and the international community’s reluctance to engage Assad.   Thus until ISIS pushed into Iraq, the international community would probably have let it be. Moreover, international law would have deemed the issue one of a non-international armed conflict.   However, once ISIS set its sights on the Mosul Dam, the international community began to wake up.

With this act, ISIS transformed the non-international armed conflict into a two-dimensional one. In other words, it added an international dimension too. Thus as the fighting between the rebels and the Assad regime continued (and continues) to be a non-international armed conflict, but the fighting of ISIS in Iraq meant that ISIS-Iraq-Kurd conflict is international. If one doubts this reading, then it would have at least become a transnational armed conflict at the very least, but because ISIS targeted Iraqi infrastructure, it seems more likely that this single act transformed the conflict into an international one.

Now that the US and other regional powers have entered the fray, it is most definitely an international armed conflict – between ISIS and these states. However, we must still remember that the civil war between Assad and the various rebel fighters is also still ongoing (as well, presumably between ISIS vs. Assad). Thus there is still a non-international armed conflict here too. And, let us not forget, R2P and Assad!

What does this all mean? Well, in short it means that the only way to tell which set of laws applies is to look at the relation of the parties at any given moment. The casuistry here will become the all-important determining factor. For example, if the US trains and arms “moderate” Syrian rebels, one would have to look at the particular operation to determine which set of laws applies. Is the operation one undertaken in support or in concert with the US-led coalition against ISIS? Yes? Then international humanitarian law applies. Is the operation undertaken by these trained and armed rebels one against the Assad regime? Yes? Well, then this may or may not be a non-international armed conflict. The International Court of Justice, for instance, holds that in the case of third party intervention in support of a rebel group, the third party needs to have “overall control” of the rebel group for that conflict to be considered “internationalized.” Given the different rebel groups, this could become a daunting analysis. Is control of one sufficient to say it is for “all?” Or just this one group?

These little details matter because the law of international armed conflict is much more robust than the law pertaining to non-international armed conflict. As the International Committee of the Red Cross notes:

“Although the existence of so many provisions and treaties may appear to be sufficient, the treaty rules applicable in non-international armed conflicts are, in fact, rudimentary compared to those applicable in international armed conflicts. Not only are there fewer of these treaty rules, but they are also less detailed and, in the case of Additional Protocol II, their application is dependent on the specific situations described above.”

In other words, there are gaps in the protection of rights, persons, property and the environment relating to non-international armed conflict that do not exist in international humanitarian law (i.e. international armed conflict).   Thus the case of ISIS challenges the international community in more ways than one. It is not that there are not laws applying to these conflicts, but that the conflicts are so convoluted that the states and parties to this conflict, as well as potential international prosecutors, will rely on so much more circumstantial evidence to sort out the details about what is permissible and when. This, however, is not something likely to happen ex ante in targeting operations, training and arming. I fear that while there are overlapping jurisdictions of rules and laws here, the convoluted nature will engender an even greater realm of permissiveness and the parties to the conflicts will end up transferring more risk and harm to the bystanders. Civilians always suffer, to be sure, but the laws of war are supposed to mitigate that suffering. If the laws of war are convoluted because of the complexity of the actors and their relationships, then this will have greater deleterious effects on the lives and rights of noncombatants.

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Obama's "Lack" of Strategy Towards ISIS

The last two days have seen a maelstrom of media attention to President Obama’s admission that he currently does not have a strategy for attacking or containing ISIS (The Islamic State in Iraq and Syria) in Syria.   It is no surprise that those on the right criticized Obama’s candid remarks, and it is equally not surprising that the left is attempting some sort of damage control, noting that perhaps the “no strategy” comment is really Obama holding his cards close to his chest.   What seems to be missing from any of the discussion is what exactly he meant by “strategy,” and moreover, the difficult question of the end he would be seeking.

Let’s take the easy part first. Strategy, at least for the military, has a very particular meaning. It is about ends, ways and means of a military character. Indeed, strategy, as distinct from operational planning and tactics, is about the overall end state of a war (or “limited” war).   The strategic goal, therefore, is about the desired state of affairs post bellum. It requires that one ask: What is it that I want to achieve? How would I get there through the use of force? “Strategy” is not tantamount to “planning,” and for the strategist, ought to be reserved for strictly military activities.

Once one identifies the desired end, one must then take this goal and break it down into more manageable pieces through another two levels: operations and tactics. The operational level concerns the middle term: it something beyond a particular tactic (say aerial bombardment of an enemy’s rear line), to something broader, say a collection of missions. All the operations ought to be directed toward some particular portion of the overall strategy.   At each level a commander is issued a set of commands, and each commander then takes her orders and operationalizes them into how she thinks to best achieve those orders (commander’s intent). She does so by consulting with a variety of reporting officers (weaponeers, logistics, lawyers, etc.) This is a hierarchical and a horizontal process, and it always feeds back upon itself to ensure those goals are in fact being achieved.   Or, at least, this is how the process ought to go.

It is, therefore, laudable that President Obama admitted that he does not yet have a strategy for dealing with ISIS in Syria. Why? Because, the desired “end goal,” of which any strategy necessarily requires, is not yet clear. Does the US want to “defeat” ISIS? Surely that is part of the equation, as Secretary of State Kerry called it a “cancer.”   Yet there is more to this tale than merely quashing a group of radicalized, well-organized and heavily armed nonstate actors.  The US military power could do this relatively quickly, if it desired to do so.   But this would not “defeat” ISIS in the way of seeking a better peace or achieving one’s end goal. For taking it out does not entail that justice and harmony will prevail.

This brings us to the second and more difficult question: What is the desired end goal? While I am not privy to the Commander-in-Chief’s thought processes, nor am I present with the Joint Chiefs of Staff in their briefings to the President, but as a student of strategy and an observer and academic, it appears to me that the President has not adequately formulated what this end goal ought to be yet. If one truly desires that ISIS is “defeated” this will take more than air strikes, it will take more than (whoever’s) boots on the ground.   It will take establishing the rule of law, providing for basic needs, such as food, security and water, as well as jobs, education, and infrastructure. For ISIS is not a traditional “enemy,” it is a monster made from the blood, havoc, insecurity and fear that have ruled Syria for three years. This new crisis over ISIS does not come from nowhere: over three million Syrians are refugees; over six million are internally displaced; and almost two hundred thousand have died. Bashar al-Assad’s crimes against humanity and war crimes provided the incubator for ISIS. Moreover, the world’s—not just the US’s—failure to do anything to protect the Syrian people and respond to Mr. Assad’s crimes generated an expanse for ISIS to grow and consolidate. That the international community manifestly failed in its responsibility to protect the Syrian people is obvious, and it is equally obvious that one cannot ignore a crisis and think it will just go away.

Recall that at the very beginnings of the Syrian crisis, up until the (in)famous “red line” of chemical weapons, the US could not garner support from its allies or from its own people. The geopolitical situation then, while heavily dictated by Iran and Russia, is not much different. To be sure, Russia is clearly on its own dangerous course in Ukraine, and Iran has ISIS in its backyard, but there is no upwelling of international support to this cause.

Secretary of State Kerry’s op-ed in the New York Times calls for a “global coalition” to fight ISIS. Whether he realizes that this threat is not just about ISIS, that ISIS is merely a Golgothan of the Syrian civil war, is yet to be seen. To actually “defeat” ISIS is to remove the need for ISIS. ISIS has merely filled a Hobbesian vacuum where:

“The notions of Right and Wrong, Justice and Injustice have there no place [in a state of nature]. Where there is no common Power, there is no Law; where no Law, no Injustice. Force and Fraud, are in warre, the two Cardinal Vertues. Justice, and Injustice are none of the Faculties neither of the Body, nor Mind. […] They are Qualities, that relate to men in Society, not in Solitude” (Hobbes, Leviathan, Chapter 13, para. 63.)

Yet if we view the fight against ISIS beyond the mere military victory, it is a fight against ideology, insecurity, and fear. Indeed it does require a global coalition, but one directed towards the establishment of peace and security in the Middle East – and beyond – and the protection of human rights and the rule of law. In this, it requires states to look beyond their immediate self-interests. Therefore, I am actually happy to see the President give pause. For maybe, just maybe, he too sees that the problem is larger than dropping tons of ordinance on an already destroyed nation. Maybe, just maybe, he sees that ISIS can only be defeated through broader cosmopolitan principles of justice.   If this is too tall an order, then he must tread very carefully while formulating his restricted and “limited” strategy.

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The Responsibility to Protect: Israel & Gaza

gaza bomb

The London School of Economics Middle Eastern Studies Center recently advertised that it is going to hold a symposium on whether the Responsibility to Protect (R2P) Doctrine applies to the current conflict between Israel and Palestine. In particular, it is gathering a cohort of experts to debate R2P’s standing in the conflict, as well as if the norm is the correct framework to be “useful;” however, “useful” for what is not at all clear.

R2P, which holds that states have a responsibility to protect their peoples against gross crimes against humanity, war crimes, genocide and ethnic cleansing, is a contentious and nuanced doctrine. How it applies to the current situation in Gaza is not at all evident, given that this particular situation is not an “easy” case. The conflict is not “internal” in the way that Syria’s civil war is, and as such, few have called upon the parties to clearly uphold their “responsibility to protect.” Thus before anyone rings the death knell for R2P (again), we ought to consider the facts of the case. Continue reading

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“Truth to Power”: Louise Arbour on Human Rights and International Justice

CBC – CP file photo

The Canadian International Council recently organized an interesting public event with Louise Arbour on her role in speaking “truth to power.” The talk is available on line at Open Canada.org. (starts around 22min mark, after the introductions) and is constructed as a dialogue with Stephen Toope, President of the University of British Columbia and notable international law scholar.

Madam Arbour is known for being outspoken on the ICC’s prosecutorial strategy, shortcomings in the human rights regime, and advocacy on the Responsibility to Protect and especially the case of Sri Lanka. Arbour’s authoritative voice on these issues stems from her professional credentials and experience: former Chief Prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda, former justice of the Supreme Court of Canada, former United Nations High Commissioner for Human Rights, and presently the President of International Crisis Group.

It’s worth a listen. But for those interested in just the human rights and international justice stuff here are my selective highlights on the issues mentioned above.
(Note: these are not exact quotes as i’m a sloppy transcriber).

Human Rights
There is a need for adequate institutions, specifically an international human rights court. As long as the protection of human rights is in the hands of the duty bearers – the states – not surprisingly we’re not going to get very far.

Peace vs. Justice
The timing (of the Milosevic trial) was dictated exclusively by prosecutorial considerations. Some were concerned that a peace deal would put him out of reach…What it did to the peace process was not part of my brief.

The indictment of Gaddafi was very precipitous…it’s not an unfair assumption that it might have contributed to closing some doors to a negotiated settlement….The same actors in the Security Council that referred the Libya case to the ICC have not moved on Syria…The tensions between peace and justice are very present and will remain so until and unless we segregate the justice agenda from the political one.

Joseph Kony…probably accurate that the fact that he was indicted, at the end of the day, made it impossible for him to participate in peace talks…Political negotiators cannot deliver on that. The ICC process is a parallel track. It is not negotiable in peace talks.

What we need to do is what we do in domestic systems – we make it very clear that politicians don’t run indictments.

ICC and Africa
It would have been imminently predictable that the docket of the ICC would be heavily African. Apart from the cases of Security Council referral, all the other cases have come from countries that have ratified the Rome Treaty….That is the fundamental premise…The ICC was not engaged when there was, in my opinion and with lots of evidence, massive slaughter of civilians on the beaches of Sri Lanka. Well, Sri Lanka has not ratified the Rome Treaty.

The ICC might have been better advised, rather than try to downplay (the African bias) to really embrace it and engage with African governments – open offices, be there, be very present. As opposed to staying in The Hague and be very defensive that it’s only engaged in African issues.

Cooperation of authorities in the DRC with the International Criminal Court has been problematic from the beginning. It’s very unfortunate that the ICC only has jurisdiction in the Congo since the Court was created in 2002 when in fact the most catastrophic loss of life in the Congo took place in the decade before, from 1993-2003. When I was High Commissioner (for Human Rights) I launched what we called the “mapping exercise” to try to document that decade where between 3-5 million people were killed in the east of the Congo and there’s no legal regime to deal with it. The ICC has no jurisdiction so the idea was to hand this over to the Congolese authorities to try to encourage them to launch some kind of mechanism.

Accountability there (DRC), even with the ICC in place, it’s not almost ten years since the ICC has been in place and what? There are five, six people charged?….The ICC has a long way to go before it can be reflective of its mission in that environment

War on Terror and Sri Lanka
One of the most tangible and perverse effects of the War on Terror is the treatment of the war in Sri Lanka. The last few months, in 2009, of the thirty year old war whereby the government of Sri Lanka finally eradicated the LTTE was achieved at an unconscionable cost to civilian lives, which generated virtually no adverse response because it was under the agenda of the War on Terror. The LTTE had been depicted, quite accurately I might add, as a terrorist organization which had preyed on its own population. There’s not much to be said very positively about its methodology. And a lot of casualties in the last few months of the war are attributable to the LTTE itself – it’s not just government forces. But the way this was achieved would not have been tolerable if it had not been under the umbrella of one of the few so-called success stories of the War on Terror.


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President Obama on Genocide Prevention

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R2P, Louise Arbour and the Responsibility to Reality

She’s cool, but she’s wrong.

I have a short piece on the Responsibility to Protect (R2P) in the October 2010 Review of International Studies Special Supplement on “Evaluating Global Orders” (that came out last week? I don’t get journals). It’s basically a reply to Louise Arbour, former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) who argued in 2008 that R2P was becoming “a duty of care in international law and practice”.

For those of you who don’t have access to the journal (or just want a brief description) my argument is that Arbour’s line of reasoning is flawed.  Arbour rests her argument on the 1948 Genocide Convention and the 2007 Bosnian Genocide Case at the International Court of Justice. She suggests that because the Article 1 of the Convention states that states have a duty to prevent and punish genocide, and that Serbia and Montenegro were found to be in breach of this obligation, that stopping genocide/mass atrocity is becoming a legally enforceable norm.  Further, she argues that this does not only suggest that neighbouring states should intervene, but any state that has the ability to intervene (Psst: she’s looking at you, Western states!) is legally obliged to do so. (Clearly, I’m simplifying here. If you’re interested, read her article for the full argument.)

I found this argument problematic for a number of reasons – all well pre-Côte D’Ivoire and Libya. (I wrote this in March 2009, revised it in spring 2010.)

The first set of critiques has to do with Arbour’s reliance on the 1948 Genocide Convention and the decision in the 2007 Bosnian Genocide Case.

First, the decision in the Bosnian Genocide Case states that states are only obliged to intervene if genocide has actually occurred or there is a plausible risk of it occurring. Fair enough, but how do we know if/when genocide is happening or likely to happen? The ICC was unable to bring genocide charges against Sudanese President Omar al-Bashir on its first attempt because there wasn’t enough evidence that a genocide (which has a very particular legal definition requiring evidence of intent) was taking place. (The ICC prosecutor was successful in having these charges laid against Bashir on appeal.)

Secondly, the Court’s decision in the Bosnian Genocide Case was far more limited than what Arbour suggests in her article. The decision states that the Court did not “purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts.” Yet this is exactly what Arbour is doing. She’s extrapolating from this case to make the case for a general obligation despite the fact that the Court was clear on where it put the limits of its judgement.

Thirdly, even if such a norm could be established, there is little guidance in either the ICJ’s decision or Arbour’s argument as to what “prevent” actually is. There is also no guidance as to who should make the determination that genocide is taking place (if states are to be held legally accountable, does it matter if there is international recognition at the emergence of a risk of a genocide occurring?) In fact, the only guidance offered in the Court’s decision is that something should be done “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” Not exactly a clear road map to action.

The second major set of critiques I have for Arbour relate to the fact that even if we could establish an obligation or “duty of care” in the international community, that this still doesn’t get to the “hard part” of R2P: actually getting states to do things. It is one thing to establish a law, principle or even a norm – it is quite another to change practices. If we have learned anything about international law in the last few decades, it is that its existence rarely delivers consensus.

In other words, even if everyone can agree that R2P as a legal obligation exists, this does not mean there will be agreement as to how it should be implemented. For example, should it be done through sanctions? Direct military intervention? Monitoring? There is no answer – and that is because these are the hard questions of R2P for which there is no easy answer. More importantly, these are the complicated issues which cannot be solved through law like Arbour seems to hope. Establishing an obligation does not help us to answer the much more difficult questions related to authorization and execution.

The third part of the article (somewhat rhetorically) suggests that we need to think about R2P with a “responsibility to reality”. In other words, while there can be no question that R2P is a revolution in the notion of ‘sovereignty’, translating this into a legally enforceable responsibility is, politically speaking, taking R2P to a whole new and probably unrealistic level. R2P ultimately comes down to a difficult political discussion between states. This means it is applied inconsistently, and where more powerful states believe there is an interest. Ultimately, as mentioned above, trying to solve this political problem with law is not going to work. Lawyers may want to remove themselves from the icky world of politics so that they may establish norms and principles from above, but the “reality” is that the future of R2P will not be decided at the ICJ, but in the closed door-meetings of NATO and the UN Security Council. At the very least, R2P’s future will not be decided through law, but the imperfect political international political institutions. Perhaps the best that international lawyers like Arbour can hope for is that R2P gives us the common language in which action may be debated and plans to help solve some of the world’s worst problems may be asserted. R2P may actually work – but it is difficult to imagine that it will work in such a way as to effectively trap states into obligations into which they have not given their consent.

Short version: Arbour is wrong, I’m right. HA!

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The Obama Undoctrine: A Response to My… Critic?

If I read him correctly, Armed Liberal thinks that I advanced an argument for intervening in Libya and that this makes some people who opposed the Iraq War a bunch of hypocrites.

Or that my description of Obama’s justifications are accurate and that those justifications don’t sufficiently distinguish Libya from Iraq.

I’m not entirely sure. Probably because I’m still kind of sick and I’m very tired.

Regardless, AL raises some key issues after quoting my post:

That kind of thing makes liberal hawks get all starry eyed. But what makes Libya different than most of the other places where tyrannical governments do nasty things to their citizens isn’t terribly Wilsonsian:
* Qaddafi’s rule over Libya is, on balance, a net negative for US interests;

* The US doesn’t care much for most of his friends either;

* He’s sitting on not insignificant fossil fuel deposits;

* He has no real support among the great powers; and

* The UK, US, and France really, really, really don’t like the guy

Well, gosh, that’s not very useful. because if that’s good policy, then invading Iraq made perfect sense – and as we all know, the smart kids have all determined that it made no sense (I’m remaining on the fence myself, but I’m neither smart nor a kid).

Here’s the issue; in my work I’m talking to people all the time about the difference between a strategy and a platitude. Platitudes sound a lot like strategies, but there’s a key difference – they don’t help shape action in a meaningful way. So just as science requires that a theory be falsifiable in order to be scientific, strategy has to cover certain actions and not others, and group actions into necessary, good, unnecessary and bad.

And unless the modern foreign-policy commentariat can a) make up a strategy that distinguishes Libya from Iraq (except by saying that for the fact that one is the product of a good president, and one the product of a bad one), or b) determine that Iraq was just as good a strategic idea as Libya – we’re flat out of strategies.

I  agree that, in some respects, Obama didn’t put an enormous amount of daylight between Libya and Iraq. He argued that the Libyan operation (1) is more multilateral in character, (2) doesn’t involve the deployment of major ground forces, and (3) conditions its success on outcomes short of regime change.

This last point struck many (or, at least me) as disingenuous, insofar as Obama made it pretty clear that the coalition wants Gaddafi gone. Thus, I’m not surprised to hear reports that the coalition is ramping up its covert and overt support for the rebels.

However, the more I think about these matters, the more I am convinced that Obama did—in substance if not  in his rhetoric—draw clear and sound distinctions between Libya and Iraq. Recognizing these distinctions, of course, does not require us to endorse either action. Rather, it assuages AL’s worry partisanship supplies the only warrant for disapproving of one but not the other.

1. The express justification for the Libyan intervention centers on preventing the imminent massacre of civilians and dissidents. This ties its legitimacy to responsibilitytoprotect norms. Although the Bush Administration invoked Saddam Hussein’s past campaigns of mass violence as grounds for the Iraq War, those campaigns had run their course by 2002. The major justifications for Iraq invoked rationales of preventive war (under the misleading label of “preemption”), i.e., that Saddam Hussein’s regime would, if not removed, acquire capabilities that it would direct against the United States.

2. It follows that one can rather straightforwardly argue for the Libyan intervention—on the grounds that it involves an imminent threat of mass violence triggering responsibility-to-protect obligations—and against the Iraq War—on the grounds that both no such basis existed and that the preventive-war criteria failed to withstand both normative and factual scrutiny. Indeed, the major humanitarian grounds for invading Iraq—which were not a central justification for the war, even if some have retconned them as such—rested on different moral claims than those at stake in Libya: namely, that military force (and military occupation) ought to be used to promote democratic regime change.

3. Thus, even if the Operation Odyssey Dawn results in Libya becoming more democratic, and even if we approve of this outcome, that does not make the strategic rationale for the Libyan intervention identical to that of the Iraq War.

4. The pragmatic considerations that I invoked in my post also provide a basis for distinguishing between Iraq and Libya. And here I refer not to the bullet points AL quotes—which I intended primarily to distinguish Libya from Yemen, Bahrain, Saudi Arabia, and Syria—but to both explicit and implied arguments in the rest of the post, i.e., that the military risks posed by the intervention in Libya are orders of magnitude lower than those posed by Iraq. For example:

  • The US is not contemplating the occupation of Libya;
  • A power vacuum in Libya does not advantage a regional rival of the United States;
  • There are existing rebel forces on the ground that seek a unified post-Gaddafi Libya; and
  • The intervention, at least so far, smacks more of assisting ordinary Arabs then of imperial occupation.

Some of these differences may disappear in days or weeks, and others may not seem persuasive, but I’m fairly confident that the first two provide a significant basis for distinguishing Libya from Iraq on criteria of US national interests.

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The Limits and Future of R2P

Small Wars Journal published a longer version of my argument about the criteria associated with the R2P doctrine and why the “If Libya Why Not Bahrain” argument is specious.

However, particularly in light of evolving events, I think it’s important to qualify this argument by emphasizing that I’m describing an existing (and limited) set of standards, not necessarily endorsing it as currently constituted. In fact it would surprise me if Operation Odyssey Dawn does not result in some slightly revisited normative understandings regarding R2P, and indeed perhaps it should. (The rest of this is a thinking aloud post, so please take my ruminations in that context.)

Based on what we are seeing now – both decisions by policymakers and reactions to them by various audiences (in particular, the “If Libya Why Not Bahrain” argument remains as salient as ever) – it seems to me that the perceived legitimacy of humanitarian interventions might ultimately be understood as contingent not only on the behavior of the repressive regime in question, but also on the behavior of their adversaries. This may be inconsistent with the doctrine as previously articulated, but that doesn’t change the fact that the argument seems to carry significant weight.

A piece of this argument bears close consideration, in fact. In short, should the “just cause” threshold for evaluating the relative merit of interventions be related solely to the gravity of the atrocities averted? Or should it also be related to the question of whether or not the civil society in question are represented by peaceful, non-violent protesters? Currently “just cause” is understood in the R2P doctrine only as the former. But there seems to be considerable support for the idea that Bahrainis, Yemenis and Syrians have at least as great a claim to international military assistance, precisely because they are protesting peacefully, than the Libyans, who are represented by rebels who very quickly chose a military approach.

Does this make sense? I don’t know the normative answer to this question. In legal terms, the civilians whose lives are being saved are equivalent in both cases – they’re the people who are unarmed and at risk in either scenario. (It’s not a war crime for Qaddafi to target the rebels, only the civilian-populated areas.) On the other hand in practical terms favoring intervention in cases where armed rebels have provoked a particularly bloody crackdown suggests rewarding opposition groups for violence rather than non-violence – even more so if the intervention then expands from civilian protection to actively arming the opposition. (Though according to Josh Rogin we may be drawing the wrong conclusions from recent revelations.) The lesson for protesters in other Middle East countries is probably this: if you want military help from outside, take up arms and provoke a crackdown.

Certainly that strategy worked for the Kosovar Albanians, whose peaceful leadership un Ibrahim Rugova’s Democratic League of Kosovo was sold out at the Dayton Accords, but who had far better success attracting international support once the DLK’s successor, the Kosovo Liberation Army, was able to provoke a crackdown from Belgrade with terror attacks starting in 1996. Critics of the 1999 air war have sometimes pointed out that had the West supported the peaceful pro-democracy movement in the first place, there would have been no need for an intervention in 1999.

On the other hand, if the R2P doctrine were updated with a requirement that the people being saved use only non-violent means in the face of violent repression, I think there are ethical and practical implications. The ethical implication is that it’s somewhat unfair – given that dissidents in a given country cannot count on international forces in every case and therefore are in a situation of self-help. Resolving this dilemma in favor of greater consistency would probably legitimize more interventions rather than fewer, and given that the R2P norm conflicts with another very important norm that saves a lot of lives, it’s not clear that’s a good thing.

All that aside, I wonder if in fact this is the lesson that international norm-makers will draw from the outcome of this debate. And I wonder what readers think about that as a prediction, as well as what you think about it as a normative proposition?

[cross-posted at Lawyers, Guns and Money]

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Morality, R2P, the nature of conflict and the emerging “Obama Doctrine”

There’s been some really interesting posts here on R2P in the last few days. At the risk of kicking a dead horse – although I hardly think this horse is dead – I’d like to raise a few points. (I’ve actually been writing this post over the past few days, and was going to post it later in the week, but Obama’s speech tonight made me want to post it earlier. You know, because hasty blogging is always a good thing.)

Most of my thinking has been on the issue of consistency/inconsistency with regards to R2P. I think I agree with Charli, there is no consistency requirement when it comes to R2P. For better and for worse, the case presently being made for R2P in Libya is that the international community is acting where it can when it can. The better part of this is that it’s relatively easy to protect civilians from conventional military forces (tanks, planes, etc) and this is why I think we see the action in Libya. Boots on the ground are not required, and if they were, it’s clear that they’re probably not coming. As Obama said tonight, boots on the ground would entail a situation where the “dangers faced by our men and women in uniform would be far greater. So would the costs, and our share of the responsibility for what comes next.”

The worse part of this, as implied by Obama’s speech, is that it is still very hard to end civil wars/ethnic strife (such as that of Rwanda – which provoked so much soul-searching about humanitarian intervention in the first place). And this is why we aren’t really seeing any intervention in Côte d’Ivoire – because everyone knows it would be a hot mess.

This is unfortunate. As the International Crisis Group has indicated in a letter to the UN Security Council today specifying that things are going very badly, very quickly in Côte d’Ivoire.

The security and humanitarian situation in Côte d’Ivoire is rapidly deteriorating. Civil war in the country has been reignited; we are no longer warning of the risk of war, but urging swift action to halt the fighting and prevent ethnic cleansing and other mass atrocity crimes.
… the Security Council should immediately authorise military action to ensure the protection of the population by UNOCI or other authorised forces and to support President Alassane Ouattara and his government in exercising authority over the armed forces and ensuring the territorial integrity of the state….
According to the UN, 440 people have been killed and 500,000 have been forced to flee their homes. This toll is still growing. There are reports of sexual violence, summary execution and individuals being burnt alive. Gbagbo’s militias continue to perpetrate violence and organise road blocks controlled by armed men, and elements in the Ouattara camp have also been implicated in targeting civilians.

I think this situation answers the question that Jon raises in his post as to whether a threshold to act has been crossed. (Incidentally, I also agree with his conclusions on Libya, that it was likely a mass-atrocity by Gaddafi forces was about to be raised.)

So how can we morally defend the inconsistency of intervening in Libya and not Côte d’Ivoire? Is Obama’s pragmatism really a sufficient answer?

Well, as suggested above, Libya and Côte d’Ivoire are very different conflicts. Libya has been determined to be a conflict that can be solved from 10,000 feet. This is something that Western militaries are far more comfortable with because it clearly is much less of a risk to them AND they can avoid the very bad and messy pictures of boots on the ground which lend themselves to critiques of imperialism – if not just more images of western troops in another Middle Eastern country.

But I wonder if this means that R2P only lends itself to this kind of conflict? That we’re good to go for interventions where western forces can effectively bomb a conventional army into oblivion, but conflicts that require more direct and inherently risky intervention become an entirely different proposition. I think this is an obvious point – but it does point to the fact that anyone who seeks to make R2P a consistent norm is basically out of luck? That our inclination to “prevent, respond, rebuild” is going to be determined by the nature of the conflict rather than the need on the ground?

Certainly this is a concern that Obama alluded to and sought to answer in his speech:

In fact, much of the debate in Washington has put forward a false choice when it comes to Libya. On the one hand, some question why America should intervene at all – even in limited ways – in this distant land. They argue that there are many places in the world where innocent civilians face brutal violence at the hands of their government, and America should not be expected to police the world, particularly when we have so many pressing concerns here at home.
It is true that America cannot use our military wherever repression occurs. And given the costs and risks of intervention, we must always measure our interests against the need for action. But that cannot be an argument for never acting on behalf of what’s right. In this particular country – Libya; at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Gaddafi’s forces in their tracks without putting American troops on the ground…

The question is whether or not this then jeopardizes the morality of the norm. Obama’s pragmatism suggests that we have a responsibility to protect, but only where it’s convenient. Only where (American) lives are not at stake. What kind of norm is that? As one commenter argues:

If the “responsibility to protect” is a sacred principle, shouldn’t it be applied everywhere? What about those peaceful demonstrators who are being shot at by the Syrian army? What about the civilians threatened by the fighting between partisans of Alassane Ouattara, the opposition leader who was elected president of Ivory Coast in November, and those of Laurent Gbagbo, who lost the election but refuses to leave? What about the Shia majority in Bahrain whose aspirations to social equality are brutally repressed by a Sunni dynasty with the help of Saudi Arabia?

In this sense, I think many of our (their) hesitations about R2P are about consistency. We worry about consistency because we like check-boxes. We like certainty. Perhaps it offers predictability. Or, as guest-Duck blogger Chris Brown has written (in his collection of essays) “one of the reasons why so many people look to developing rules that will constrain action is precisely because they do not trust the judgment of those who hold the great offices of state in the Western democracies” (adding that after Iraq, there are understandable  reasons for this mistrust.)

Worries about inconsistency suggest that we’re actually really worried about something different – than rather than circumstances, R2P occurs because of different motivations. Libya has oil and Côte d’Ivoire has cocoa. It’s not surprising that there are accusations of something fishy going on here.

I’m not sure what to say – is this a sorry comfort kind of post? We can only intervene where we can be responsible; only where it’s pragmatic. Sub-Saharan Africa, you’re probably out of luck. Fans of Obama and R2P are going to have to work out the very difficult morality of that.

Ultimately, for me, just because no one is likely to do anything in Côte d’Ivoire doesn’t mean Libya is illegitimate. However, the fact that another bloody and brutal war is clearly getting underway in another poor African country is also reminder of the very real limits of R2P, which neither compels states to act nor solves many of the central problems of HOW, WHEN and WHY we carry out humanitarian intervention. And that such interventions are never going to be consistent.

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Libya: R2P or Regime Change?

On CNN this Saturday morning, the day after the United Nations Security Council voted for Resolution 1973 (2011) to authorize a “no-fly zone” in Libya, the debate has centered around whether or not the United States and its allies want regime change in Libya. After all, a few days ago President Obama said “It’s time for Qaddafi to go.” Similarly, British Prime Minister David Cameron has declared: “It is almost impossible to envisage a future for Libya that includes him. Gaddafi must go, he has no legitimacy.”

Yet, to me, this seems like a very odd and unhelpful framing of the situation.

Certainly, opponents of the no fly zone want to frame the debate around regime change in order to question the legitimacy of the intervention. For instance, Phyllis Bennis of the Institute for Policy Studies asserts that “it’s widely understood that a no-fly zone is most often the first step towards broader military engagement.” However, I would challenge that view. The U.S. for many years helped enforce a no-fly zone in Iraq that was eventually controversial and certainly was not the key stepping stone that legitimized war in Iraq. The Bush administration likely would have pursued war on Iraq even without a no fly zone. And much of the world opposed the war in Iraq precisely because it violated international norms about the use of force.

Bennis also worries about the authorization of “all necessary measures..to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.” She sees this as a virtual blank check for broader military intervention, though she overlooks the last clause. Contrast this provision to the much broader language in UNSC Resolution 678 (1990), which authorized the Persian Gulf war:

Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

The more recent Resolution focuses narrowly on protecting civilians, not the far broader goal of restoring international peace and security. That goal seemingly required ground troops in Kuwait since that is where Saddam Hussein’s forces had gone.

Bennis blames the US for the inclusion of the “all necessary measures” language, as America worried that a simple no fly zone really would not protect civilians on the ground. She overlooks the fact that this is a completely valid point. The no fly zone in southern Iraq after the Persian Gulf war concluded did not stop Saddam Hussein from slaughtering civilians. In this case, simply keeping Libyan government planes out of the air might not protect any civilians. The new resolution authorizes air strikes against tanks or other government ground forces that would otherwise attack civilians.

Put differently, this is more like Kosovo 1998 than Iraq 2003. In that successful application of military force, NATO intervened with air power, but the UNSC did not pass a supporting resolution. Presumably, UN cooperation this time will help assure limits on enforcement actions. That’s hardly a blank check.

Indeed, as CNN analysts pointed out, the U.S., France and NATO partners know that the Arab partners in the military intervention — reportedly Qatar, the United Arab Emirates, Saudi Arabia and Jordan — likely do not support external intervention to pursue regime change in Libya. Likewise, the 1991 enforcement action against Iraq did not include regime change exactly because the Arab member-states would have opposed it.

Moreover, President Obama himself has already said that U.S. intervention in Libya will be quite limited, which likely makes any regime change something that will be left up to competing forces within Libya.

I also want to be clear about what we will not be doing. The United States is not going to deploy ground troops into Libya. And we are not going to use force to go beyond a well-defined goal — specifically, the protection of civilians in Libya.

Could that be any clearer?

In the discussion I heard, some CNN announcers strongly implied that French President Sarkozy supports regime change. For evidence of this, they offered Sarkozy’s call for fairly direct intervention in support of the Libyan rebels:

“Our air force will oppose any aggression by Colonel Gadhafi against the population of Benghazi,” said French President Nicolas Sarkozy, speaking after an international, top-level meeting in Paris over the Libyan crisis.

“As of now, our aircraft are preventing planes from attacking the town,” he said. “As of now, our aircraft are prepared to intervene against tanks.”

Yet, this framing completely distorts the facts. Sarkozy explicitly does not advocate regime change:

“We are determined to take all necessary action, including military consistent with UN Security Council resolution 1973 to ensure compliance with all its requirements, ” Mr Sarkozy said.

He said the aim of intervention was not regime change but to “allow the Libyan people to choose their own destiny”.

“We are protecting the population from the murderous madness of the regime.”

That too seems fairly clear.

I think this entire discussion would be more useful if the U.S. and international media framed the debate around the Responsibility to Protect. UN Secretary-General Ban-Ki Moon certainly used this framework:

U.N. Secretary General Ban Ki-Moon also said on Thursday that the justification for the use of force was based on humanitarian grounds, and referred to the principle known as Responsibility to Protect (R2P), “a new international security and human rights norm to address the international community’s failure to prevent and stop genocides, war crimes, ethnic cleansing and crimes against humanity.”

“Resolution 1973 affirms, clearly and unequivocally, the international community’s determination to fulfill its responsibility to protect civilians from violence perpetrated upon them by their own government,” he said.

Though Obama did not use the R2P phrase, his speech about the latest UN action also largely used this frame.

Our decisions have been driven by Qaddafi’s refusal to respect the rights of his people, and the potential for mass murder of innocent civilians. It is not an action that we will pursue alone. Indeed, our British and French allies, and members of the Arab League, have already committed to take a leadership role in the enforcement of this resolution, just as they were instrumental in pursuing it. We are coordinating closely with them. And this is precisely how the international community should work, as more nations bear both the responsibility and the cost of enforcing international law.

The problem critics share, I suspect, is that the Bush administration often used humanitarian claims to justify its intervention in Iraq. R2P was not completely undermined by their rhetoric, but the recent experience does make some members of the the international community and many policy analysts skeptical of great power claims about R2P or humanitarian intervention.

Ultimately, I think some skepticism is healthy and will help assure the limits of the authorized intervention. Perhaps this would be a good time to recall the Blair Doctrine, if that is still helpful post-Iraq. UK PM Tony Blair specifically argued that this kind of international intervention might occasionally be necessary — but it should be strictly limited by something like just war principles.

First, are we sure of our case? War is an imperfect instrument for righting humanitarian distress; but armed force is sometimes the only means of dealing with dictators. Second, have we exhausted all diplomatic options? We should always give peace every chance, as we have in the case of Kosovo. Third, on the basis of a practical assessment of the situation, are there military operations we can sensibly and prudently undertake? Fourth, are we prepared for the long term? In the past we talked too much of exit strategies. But having made a commitment we cannot simply walk away once the fight is over; better to stay with moderate numbers of troops than return for repeat performances with large numbers. And finally, do we have national interests involved? The mass expulsion of ethnic Albanians from Kosovo demanded the notice of the rest of the world. But it does make a difference that this is taking place in such a combustible part of Europe.

Blair was calling for workable international action. “If we want a world ruled by law and by international co-operation,” he argued, “then we have to support the UN as its central pillar.”

I think that’s the case here. It would have been better if the states could have crafted a truly unanimous resolution, rather than one that led some key states to abstain. Nonetheless, the UNSC has authorized a limited form of humanitarian intervention into Libya in hopes of preventing government slaughter of civilians.

Similar timely action in Rwanda might have saved at least 100,000 lives — if not several times that many.

If the operational aims broaden or the implementation is bungled, then reluctant supporters like me are certainly free to demand fealty to promised limits.

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Russia and the Responsibility to Protect

Cleitus the Black has left a long comment in the thread about my Georgia War report commentary that requires a response longer than I can give there. (For someone who appears to be on permanent hiatus from his/her own blog, CTB certainly seem to find time to leave lengthy dissertations in comments on other people’s…)

CTB asks:

“What is the international standard for an ‘acceptable’ number of Russian (or American, etc) citizens living in a foreign country that may be killed before the parent state intervenes without a UN mandate?

The EU report shows that ‘only’ 850 people – Georgians, Russians, and Ossetians were killed in the course of the entire 5 day conflict… We may surmise that of that total, perhaps as few as a hundred were killed in Georgia’s initial attack on the South Ossetian capital…

But then again, in the first day of the Rwandan or Bosnian genocides (in the first day of ANY historical genocide, for that matter) how many people were killed? I am quite certain the answer is comparatively few, and the deaths are mainly among the fighters of the weaker group as the stronger group moves to assert control. The real killing begins once control of the target population has been gained.”

First, I think CTB is mixing metaphors, since intervening to protect one’s own citizens is not the same as intervening to protect the citizens of another state. But let’s assume that Russia genuinely went in to protest S. Ossetians, not Russians per se. Would this be acceptable under the Responsibility to Protect doctine?

By way of answer, I will refer readers back to a post by CTB’s own colleague Diodotus, who also seems to have vanished from the blogosphere since, penned last August. Diodotus analyzes whether Russia’s claim to a humanitarian intervention was substantiated based on the facts of the case, drawing on the R2P report put out by the International Commission on Intervention and State Sovereignty.

Diodotus points out that even if we take CTB’s claim at face value – that even a few dead civilians should meet the threshold requirements for an intervention, there are a few other criteria to take into account:

“The R2P doctrine is not simply a green light for great powers to violate small states’ territorial integrity whenever they can reasonably claim civilians are at risk. Rather, it carefully balances humanitarian concerns with the UN Charter regime. Intervening governments must not only demonstrate just cause, but they must meet several other criteria as well:

Right Intention: The primary purpose of the intervention must be to halt or avert human suffering…

Last Resort: Every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored.

Proportional Means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the humanitarian objective in question.

Reasonable Prospects: Military action can only be justified if it stands a reasonable chance of success, that is, halting or averting the atrocities or suffering that triggered the intervention in the first place.

Anyone can see that Russia’s intervention satisfied the last of these criteria quite nicely. And although the jury is still out, for the sake of argument let us accept Russia’s claim that the Georgian government’s crackdown on separatists in S. Ossetia was indiscriminate and thus constituted just cause for an intervention. Even if so, it is hard to argue that Russia’s means have been proportionate to its goals, that Russia exhausted any non-military avenues first, or that Russia has actually acted solely out of humanitarian objectives.

Perhaps most importantly is the question of right authority: who decides on the legitimacy of such a move? The Commission recognized the validity of such arguments, then made by Russia and China, that a humanitarian intervention norm would create a slippery slope toward the dissolution of the non-aggression norm entirely. So they devoted an entire chapter to the question of the authority to determine whether such an intervention should take place. It first stresses that to be genuine, humanitarian intervention must be multilateral, not unilateral; that it ought to be endorsed by the Security Council; and failing this (as it did in the case of Kosovo and now Darfur) could be legitimized under a Uniting for Peace resolution in the General Assembly. Point being, a single state exercising this “responsibility” on its own, without even a discussion among its peers, would negate the concept entirely.”

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